Does the Hanafi School encourage Marriage without the Guardian's Approval?

Question #: 6056

Date Posted: 26-08-2008

<QUESTION>

Does the Hanafi School encourage marriage without the guardian’s (wali) approval?

<ANSWER>

In the name of Allah, Most Compassionate, Most Merciful,

The short and simple answer to your question is that: No, the Hanafi School does not, in any way, promote or encourage a marriage without the approval of one’s parents or a legal guardian (wali).

To elaborate: It is a common misconception that the Hanafi School unreservedly allows a marriage without the consent of the woman’s parents or her guardian (wali). However, the matter is not as simple as that, and one must understand the Hanafi position properly before coming to any sort of conclusion.

In contrast to the position of most other scholars including the three Sunni Schools of Islamic law, the Hanafi School indeed has some leeway in regards to the necessity of obtaining the consent of the woman’s guardian. The relied upon position within the School is that the marriage of a free, sane and adult woman without the approval of her guardian (wali) is valid if the person she is marrying is a “legal” and suitable match (kuf’) to her. Conversely, if the person she is marrying is not a legal match to her, then her marriage is considered invalid. (Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/56-57 & I’la al-Sunan 11/69. For more details and the relevant evidences, please refer to the answer previously posted on this website titled: “Divorced woman marrying without her guardian’s approval”).

However, this does not mean that such a marriage is encouraged or permitted without any blame. Disobeying one’s parents is one of the most serious of sins in Islam, and as such, no School would, and can, allow going against the wishes of one’s parents outright. Many Hanafi jurists (fuqaha) have pointed out that it is generally blameworthy and going against the Sunnah to marry without the consent of the Wali regardless of whether the spouse is a legal match or otherwise due to the many Hadiths of the Messenger of Allah (Allah bless him & give him peace) emphasising the importance of having the approval of one’s guardian such as: “Any woman who marries without the permission of her guardian, her marriage is invalid, invalid, invalid” (related by Ibn Hibban, Tirmidhi and others, and Tirmidhi considered it a sound/hasan Hadith) and: “There is no marriage without the [permission of a] guardian” (related by Hakim and Abu Dawud). (See: Imdad al-Muftin P: 527)

As such, this Hanafi position is merely a concession (rukhsa) which may be resorted to in situations of need, and a blessing for those sisters who fall victim to their parent’s mistreatment and abuse. In cases where parents force their daughters to marry against their wishes based purely on caste, wealth and other similar preferences, and not Islam, and they give importance to their personal gains over and above the interests of their daughters; this position of the Hanafi School can be an important haven. However, the Hanafi School, in no way, gives a green light for sisters to marry themselves without parental approval in all situations, and as such, this position must not be taken as a standard norm upon which marriage contracts are based.

Thus, a woman must first try and convince her parents or Wali to allow her to marry according to her wishes. She may use the intermediary of someone who may be able to influence her parents. Despite trying, if her parents are still being difficult, and her wish is to marry someone based on religious piety, she should present her case to a knowledge, wise and god-fearing scholar who may be able to advise whether she may marry without her guardian’s approval or not.